Wednesday, 28 August 2013

Day 162: Loyal to a fault?

To access trial documents linked to this site, see note at the bottom of this post.

After being sworn in, the first thing that a witness appearing at the Montreal tobacco trials must do is to state their name, address and age.

From this small amount of information provided by Andrew Porter during his first appearance before Justice Riordan last year, I began to form an impression of the character of his relationship with his Imperial Tobacco, his employer of three decades.

Imperial Tobacco's converted HQ
I recognized the home address given by Mr. Porter only because it had appeared on many of the trial documents. It was the historic address of Imperial Tobacco headquarters!

(By the time that Mr. Porter retired in 2007, Imperial Tobacco had moved across the street to more modern facilities. Its old plant was converted into "Imperial Loft" condos.)

What can you say about a man who chose to spend his retirement years in the same set of buildings where he had worked for three decades? And to remain within spitting distance of his former employers?

This week it became clear that in more ways than one, Mr. Porter had never really left the building.

Back to normal -- or maybe a new normal

The heavy dose of objections laid down by the plaintiffs yesterday seemed to have had some therapeutic effect.

Today there was a lot less procedural wrangling, and even some negotiations! Justice Riordan seemed to be nudging both parties into agreeing on how the scientific reports from the companies could be used as evidence. (No firm agreement yet!)

Plaintiff lawyers André Lespérance and Pierre Boivin (and occasionally Philippe Trudel) continued to challenge Nancy Roberts as she resumed her series of questions to Mr. Porter, although at a much reduced pace and only with spotty success.

Today, Ms. Roberts maintained her equilibrium, and did not allow these interjections to distract her from moving through a very long list of prepared questions.

As usual, Justice Riordan ruled in favour of information being presented to the trial. Although he allowed Ms. Roberts to ask Mr. Porter about his opinions and general knowledge, the judge made clear that these would not be given the same weight or importance as expert opinion.

Mr. Porter's views

For the most part, the exhibits presented today (Exhibits 20176 to 20209) are reports or publications related to measuring tobacco chemistry, altering it, or assessing its impact on human beings.

Very little of the science in these documents was discussed in any detail. Instead, the reports were used as a springboard to allow Mr. Porter to counter the version of events presented during earlier testimony.

No safety standards - but a "spectrum of harm reduction"

Mr. Porter was asked early in the day whether there were any "tests or panel of tests that will prove that the risks to health would decrease with any particular modification" to cigarette designs.  No, he said. There were no tests that establish that one cigarette is safer than another.

Yet yesterday he had described the tests that were used to try to do just that - and today he made it clear that he saw certain cigarette designs in a hierarchy of safety.

"If you go back over time there have been all sorts of different approaches to reduced risk cigarettes," said Mr. Porter. The reason that so few made it to market was because smokers didn't like them.


Mr. Porter considers filters to be an effective way to reduce the toxins in cigarettes. He explained that they can achieve an across-the-board reduction in all solid components or even all compounds ("general reduction), or can be designed to target specific smoke chemicals ("specific reduction").

The cellulose acetate filters used on Imperial Tobacco brands are less effective at reducing cigarette harms than other filters Imperial Tobacco tested (i.e. charcoal or polypropelyne), but are more popular with customers. "The problem with charcoal is that it changes the taste of cigarettes considerably. We haven’t found consumers willing to change."

Novel designs

One of the first efforts to design a new (safer) kind of cigarette dated from the 1970s, when British manufacturers created artificial tobacco from cellulose and flavours. This was tested and supported by health authorities in the United Kingdom, but never tried in Canada. Smokers didn't like it. Moreover, he pointed out "it still requires the material to be burned and whenever you burn material, you create some form of risk." 

Both BAT and RJ-Reynolds developed technology for cigarettes that would "heat not burn". BAT never brought theirs to market, and RJR's Premier did not survive the test-market phase.

The simulated cigarette, FAVOR, was "further in the reduced harm spectrum" and was test-marketed in Canada. Mr. Porter reported on his own experiment with this "plastic tube with a sponge inside with flavours and nicotine."  "It was disgusting," he said. "It didn't sell, let's put it that way."

Different tobaccos

Although Mr. Porter said that some types of tobacco are more harmful than others, he didn't report how the tobacco in Canadian cigarettes compared with others.

Ways of treating tobacco can also affect the compounds it produes, he said. He described the various forms of reconstituted and manufactured tobacco used in Imperial Tobacco products in ways that suggested they were improvements on untreated tobacco, as the cigarettes made from them produced lower deliveries of tar and nicotine.

He admitted that ITL had found other ways to manufacture processed tobacco (Gerlach) which they thought was less mutagenic. But the chemicals required in the manufacturing process triggered worker-safety issues. And - again - "the taste was completely unacceptable to smokers."

He reported on efforts by ITL to reduce the tobacco specific nitrosamines in the tobacco used in Canadian cigarettes. By changing the curing methods, he said, the levels of TSNAs were reduced by 90%.

Project Day

Mr. Porter was not given the opportunity to formally present Project Day, the flagship harm reduction program that was the focus of his work for over two decades.

But he rejected the view that Project Day was driven by marketing concerns, or that it was not supported by senior management.

Mr. Porter had never seen the haughty exchange between the highest management levels of BAT and ITL in the Canadian research efforts were described as "overly simplistic" and not worth supporting. (Exhibit 255A). But this memo had not stopped the work, Mr. Porter testified. The efforts ramped up in subsequent years, and eventually BAT absorbed them into its own centralized research department.

As for why, after 25 years' effort and vast sums of money, Project Day has not made it to market? Mr. Porter had a long list of reasons. Problems with suppliers. Problems with laboratories. Problems with enzymes. Problems with filters. Problems with shifting goal posts from health authorities.

(He had more to say about Project Day, but his lawyer wasn't prepared to have it said in open court. Rather than go in camera, it was agreed that he could provide this evidence through an affadavit.)

There may be flies on some of you guys...

Mr. Porter was asked a wide range of questions that allowed him to refute earlier testimony in the trial.

* He said Mr. Wigand was wrong to say that coumarin was a carcinogen, as "Coumarin is not on the IARC list of  group 1 or 2 – it is a group 3." What is more, this is an additive that has beneficial properties! "Some of its derivatives are shown to have anti-tumorigenic activity."  

* Despite evidence that BAT had planned to restrict scientists' communication, (Exhibit 82B), such a policy had never been implemented at Imperial Tobacco. Mr. Porter's full access to documents was not diminished by the document retention policy. And lawyers never vetted or reviewed his research reports.

* Imperial Tobacco had never designed cigarettes to "cheat league tables," and had never added nicotine to cigarettes and had never used designs that increased cigarette delivery.

A proud and ethical team

Mr. Porter was unequivocal when replying "no" to the question "did Imperial engage in any unethical behaviour, in your view?" 

Ms. Roberts' last question invited him to describe the work of his department. "It was thorough. It was professional. It was done with great ethical considerations. It was somewhere where people were proud to work."

But what did he really think?

There were three minutes left on the clock when Ms. Roberts' questions were finished, but Justice Riordan extended the session to allow the plaintiffs to decide whether they needed an extended cross-examination.

Mr. Lespérance wanted to know whether when Mr. Porter joined the company he believed that smoking caused cancer or whether he agreed at the time with the official industry line. (Exhibit 580C) "The Canadian Tobacco Manufacturers Council ("CTMC") also holds the same view that the causal relationship between smoking and various diseases has not been proven."

From this point on, there was a notable change in the witness' body language and tone. He leaned on the table as he turned to face Mr. Lespérance. "At at that time I probably thought that it was a causal relationship.... I held the view that it was very likely."

So was it ethical for a company leader to say it wasn't causal? 

"If it hadn’t been proven it would be ethical to say it. If it had been proven it would not be ethical. So it then it comes to the question of whether it had been proven. I didn’t say it was 100%. There is a very big difference between likely and proven."

As Mr. Leséprance pushed for a clearer answer, the replies became more vague. Very likely, good possibility - "to me it is the same."

Mr. Lespérance showed the witness a newspaper report where his former boss took a different view. "No, it is not the position of the industry that smoking causes any disease,"Jean-Louis Mercier, chairman and chief executive officer of Imperial Tobacco Ltd. told the Commons committee." (Exhibit 1322-pp-2m)

(Parliamentary Privilege! objected lawyers from ITL and RBH, but the question was again allowed).

Mr. Porter further nuanced his answer. "I think it was a risk factor for a number of disease, but as to whether we know the exact cause, on that basis you can say that we don’t know."

For the past two days, Mr. Porter had given the impression of earnestly trying to answer the questions put to him, even though he often needed a little prompting from his lawyer. During his exchange with Mr. Lespérance, he seemed evasive and unwilling to answer clearly. 

With this impression established, the plaintiffs reported they had no further questions.

But Justice Riordan picked up where they had left off. He wanted to know how Mr. Porter and his team of 8 or 9 scientists could have worked for decades to reduce the carcinogens in cigarette smoke without ever talking about the issue of causation.

The judge tried several times to get an answer that reconciled this apparent conflict in logic. The best Mr. Porter would give him was that they had operated on the working assumption that smoke was carcinogenic, or a risk factor for these purposes.

There were no more questions. After 6 days of testimony - 4 for the plaintiffs and 2 for the defence - Mr. Porter was free to go.

For the second week in a row the hearings ended a day early and the Thursday sitting was cancelled. Some grumpiness was expressed, but no one seemed too upset at the prospect of another long summer weekend. Happy Labour Day.

Another BAT/ITL scientist - Mr. Graham Read will testify when the trial resumes on September 9th.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on:

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links